Can Your Employer Punish You for Talking About Pay? Understanding Your Rights Under the NLRA

If you are like most people, ensuring that you are being paid fairly is among your top priorities as an employee. You want to know that you are being paid what your time is worth, and you want to know that you are being paid equally with your coworkers.

These are both legitimate concerns. Studies have found that anywhere from 43 percent to 87 percent of employees feel they are underpaid, and the gender and racial pay gaps are well-known. So, as an employee, what can you do to find out if you are being compensated fairly?

The short answer is: You can ask your coworkers.

The NLRA Makes It Illegal for Employers to Prohibit Discussing Pay

The National Labor Relations Act (NLRA) expressly protects employees’ right to discuss pay with one another. While many provisions of the NLRA apply specifically to union activity, the protections regarding pay (in Sections 7 and 8 of the NLRA) apply to both union and non-union employees. As the U.S. Department of Labor (DOL) explains, among other things, Sections 7 and 8 of the NLRA protect employees’ rights to:

• Discuss pay and benefits amongst themselves in the workplace
• Discussing pay and benefits amongst themselves outside of work, including via social media platforms
• Jointly discussing pay and benefit with their employers
• Hand out materials discussing working conditions (including pay and benefits) pertaining to working conditions in non-working areas during non-working dime
• Circulate petitions in support of changes to working conditions (including pay and benefits)

As the DOL also explains, employees also have the right to contact government agencies, media outlets, and even their employer’s customers and vendors “regarding concerns over working conditions.” The protections under Sections 7 and 8 are extremely broad; and, while there are exceptions (as discussed below), as a general rule, employees have the right to talk about their pay under the NLRA.

What if an Employer Has a Policy Prohibiting Disclosure of Confidential Information?

With this in mind, what if an employer has a policy prohibiting the disclosure of confidential information (and what if the employer deems its compensation structure confidential)?

While these types of employment policies are common, employers cannot use their policies to override employees’ statutory rights under the NLRA. As a result, if an employer has a policy that either expressly or implicitly restricts its employees from discussing pay, it may be unenforceable under federal law. As summarized by the DOL:

“Employees have a broad right to communicate with one another about wages, benefits, and other terms and conditions of their employment. So, if a reasonable reading of the [policy] interferes with employee rights, it will be found unlawful. Thus, rules restricting employees from talking about their and co-workers’ wages, benefits, and working conditions will likely be found unlawful.”

Employers might want to restrict their employees from talking about pay for various reasons. They might not want their employees to know how much their co-workers earn, they might not want their competitors to know their payroll figures, or they might not want the general public to know how much (or how little) they pay. However, the NLRA is clear: Employees’ interests in talking about their pay generally outweigh their employers’ interests in prohibiting these discussions.

There Are Limits to the NLRA’s Protections Regarding Pay Discussions

With that said, there are limits to the NLRA’s protections regarding pay discussions. For example, employees in supervisory roles may be prohibited from discussing their wages if doing so interferes with their job responsibilities. Likewise, employees generally cannot discuss their pay for the sole purpose of causing harm to their employers. There may also be circumstances in which individual employees’ compensation packages qualify as trade secrets—and therefore may be subject to an employer’s general confidentiality policy.

Ultimately, however, the default rule in the vast majority of circumstances is that employees’ right to discuss their pay is protected under the NLRA. If you feel that you are being unduly restricted from talking about your pay, or if you are unsure whether your employer’s policy regarding compensation disclosures is lawful, you should consult with an attorney who can explain your legal rights based on the specific circumstances at hand and help you make informed decisions about your next steps.

What if an Employer Fires or Otherwise Punishes an Employee for Talking About Pay?

What if your employer goes a step further? What if your employer not only tells you that you can’t talk about your pay, but it retaliates against you for doing so?

If your employer fires you or takes other adverse employment action (i.e., it demotes you, reassigns you or reduces your pay) based on your exercise of your rights under the NLRA, this can provide clear grounds to take legal action. Employers are prohibited from retaliating against their employees based on their employees’ decisions to assert their legal rights, and retaliating constitutes an unfair labor practice under the NLRA. In unfair labor practice cases, employees can seek remedies including:

• Reinstatement – If you were fired, demoted or reassigned, you may be entitled to reinstatement.
• Back Pay with Interest – You may also be entitled to recover any lost earnings resulting from your employer’s unfair labor practice.
• Costs and Attorneys’ Fees – The NLRA also entitles employees to recover their costs and attorneys’ fees in appropriate cases.

With that said, every circumstance is unique; and, here too, making informed decisions requires experienced legal representation. If you have lost your job or faced other punishment after talking about your pay, you should consult with an experienced employment lawyer promptly.

Speak with an Experienced Employment Lawyer at Murphy Law Group in Confidence

Our practice is devoted to helping employees in Pennsylvania and New Jersey protect their legal rights. If you have questions about filing an NLRA claim, we strongly encourage you to get in touch. To speak with an experienced employment lawyer at Murphy Law Group in confidence, please call 267-273-1054 or request a free consultation online today.